01976069
04-16-1999
Kenneth A. Foster, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kenneth A. Foster v. United States Postal Service
01976069
April 16, 1999
Kenneth A. Foster, )
Appellant, )
)
v. ) Appeal No. 01976069
) Agency No. 4-G-700-0067-97<1>
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. �621 et seq. The final agency decision was issued on
July 7, 1997. The appeal was postmarked August 2, 1997. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that it states the same claim as that pending
before or that has been decided by the agency.
BACKGROUND
The record reveals that appellant initiated contact with an EEO Counselor
on November 27, 1996. On March 10, 1997, appellant filed a formal EEO
complaint (Agency No. 4-G-700-0065-97) wherein he alleged that he had
been discriminated against on the basis of his age (52) when on November
20, 1996, he was issued a letter of warning for failure to perform the
duties of his position in a satisfactory manner. The agency accepted
the complaint for investigation.
Appellant also filed another formal EEO complaint (Agency No.
4-G-700-0067-97) on March 10, 1997. In that complaint, appellant
alleged that he had been discriminated against on the basis of his age
(52) in the following manner: Appellant stated that he is the only
Manager with mail routes that do not have a regular eight-hour relief
person. Appellant also stated that he is the only Manager that had
an additional two routes added to his territory. Finally, appellant
raised the issue of his November 1996 letter of warning by stating that
a coworker had his letter of warning reduced to an official discussion.
In a final decision dated July 7, 1997, the agency captioned the decision
as relating to Agency No. 4-G-700-0067-97. However, the agency stated
that it was dismissing Agency No. 4-G-700-0065-97 as being identical to
Agency No. 4-G-700-0067-97.
On appeal, appellant argues that he intended that the information
contained in Agency No. 4-G-700-0067-97 be considered as supplemental
information to Agency No. 4-G-700-0065-97, and not as an additional
complaint. Appellant requests that all information be consolidated as
part of Agency No. 4-G-700-0065-97.
In response, the agency asserts that the instant appeal is premature
given that Agency No. 4-G-700-0065-97 was accepted for investigation on
June 13, 1997.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
Upon review of the final agency decision, as well as the comments
submitted on appeal, we find that the complaint which was dismissed
is Agency No. 4-G-700-0067-97, particularly in view of the agency's
contention that Agency No. 4-G-700-0065-97 was accepted for investigation
on June 13, 1997.
We note that both complaints raised the issue of the letter of warning
issued to appellant in November 1996. In Agency No. 4-G-700-0067-97,
however, appellant also raised the issues of being the only Manager who
was assigned two extra routes and who did not have a eight-hour relief
person. Therefore, we find that the two complaints are not identical
except for the issue of the letter of warning. Therefore, the two issues
from Agency No. 4-G-700-0067-97 concerning the extra two routes and no
relief person will be remanded to the agency for further processing.
Finally, we note appellant's contention that he intended the information
contained in Agency No. 4-G-700-0067-97 to supplement his case in Agency
No. 4-G-700-0065-97. Therefore, we find that on remand the agency
should consolidate appellant's two complaints for further processing in
accordance with EEOC Regulation 29 C.F.R. �1614.606.
CONCLUSION
The agency's final decision is hereby MODIFIED. The dismissal of the
issue regarding the November 1996 Letter of Warning is hereby AFFIRMED.
The dismissal of the two allegations concerning the two additional
routes and the denial of an eight-hour relief person is REVERSED.
The two allegations are REMANDED to the agency for further processing
in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) days of the date of this decision, the agency shall
notify appellant that his complaints under Agency Nos. 4-G-700-0065-97
and 4-G-700-0067-97 are being consolidated for further processing in
accordance with EEOC Regulation 29 C.F.R. �1614.606.
Thereafter, the agency shall process the consolidated complaint in
accordance with 29 C.F.R. �1614.108. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant of the
appropriate rights within one hundred twenty (120) calendar days of the
date on which it issues the decision to accept appellant's complaint,
unless the matter is otherwise resolved prior to that time. If appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's notice to appellant of the consolidation of his
complaints must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1We note that this case was originally identified with Agency
No. 4-G-700-0065-97; however, upon review, it is clear that the case on
appeal is Agency No. 4-G-700-0067-97.